TMI Blog2021 (9) TMI 1011X X X X Extracts X X X X X X X X Extracts X X X X ..... stment of the departmental management fees, for the period after its contract was terminated. The respondent was also entitled to claim relief under the Amnesty Scheme, which was denied to it despite having succeeded before the High Court - Since the respondent had approached this Court complaining that the State had sought to auction his properties, a status quo order was made, binding the parties not to take fresh steps. In view of the findings recorded, the State has to ensure that the property of the respondent is released from attachment and due possession is handed back to the latter within the same period of two months. The following directions are given: (a) Upon payment of 50% of the amount, i.e. 50% of ₹40,51,288/- within two months from today, the respondent s liabilities towards the arrears of dues for the liquor vend in issue which was cancelled by the appellant State s order dated 30-09-1993 shall stand discharged; (b) The state is hereby directed to release the respondent s property attached and sought to be sold, towards satisfaction of the above liability, upon receiving the said balance 50% of the amount within two months or latest within four weeks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e preferred a writ petition for a declaration that the cancellation of the licensee for sale of country liquor for the period 01-04-1993 to 31-03-1994 was illegal and void and that its liability with respect to Group-II arrack shops for the year 1993 94 ended upon the cancellation taking place. It sought to limit its liability for the period April 1993 to 19th August 1994. The petition was dismissed by the single judge. Aggrieved with this, the licensee preferred an appeal to the Division Bench. The Division Bench by a short order-impugned in the present appealfollowed its previous decision and held that since the contracts were entered into before the amendment of Rule 13, the licensee was liable to pay only the actual loss suffered by the government, in realisation of rentals and excise duty. The court directed the government to issue fresh demands in accordance with the rules and agreements executed with the licensee covering only the actual loss. 4. It is argued on behalf of the state that there was no challenge to Rule 13 of the Management Rules, and as a result, the impugned order was not justified in holding that the licensee was liable only for a limited period. Pointing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covered by the Department as management fees from the overall liability, did not arise. It was emphasised that importantly, the rules were brought into force after the termination of the license, which occurred on 19-08- 1993. However, the rules were amended on 23-12-1993. Therefore, the amendments were inapplicable to a past event, i.e. the respondent, whose license had been terminated earlier. It was argued that even otherwise, the licensee cannot be made liable for non-payment of dues for the entire period, since the department itself ran the outlets and recovered departmental management fee as well as excise duties. 7. It was also argued that the Division Bench correctly relied on its previous ruling in Lucka v State of Kerala Ors Dated 11-08-2000 in OP 8271/1994 where the amended Rule 13 was held inapplicable to contracts awarded or entered into previously. It was also urged that the state had issued amnesty policies in 2008 and later in 2011. Despite the judgment of the High Court, the respondent s application for relief under the amnesty scheme of 2008 was rejected without rhyme or reason. It was also pointed out that this court permitted the respondent to deposit 50 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the resale may be given credit towards the dues from the resale purchaser, if he completes the security. The departmental management fee that may be given credit to the Original, contractor shall be forfeited if he had not completed the security. Similarly, the departmental management fee that may be given credit to the resale purchaser shall be forfeited if he fails to complete the security. 10. The rule was amended with effect from 23-12-1993. The amended Rule 13 is as under: 13. Departmental Management fee to be given credit of - The Departmental Management fee collected from a shop while it was under Departmental Management due to default of payment of security, kist, excise duty etc., shall be liable to forfeiture: Provided that where the licensee dies during the currency of a licence, the amount collected as departmental management fee may be credited towards his kist amount. 11. The petitioner deposited ₹ 31,81,800/- being 30% of the bid amount as security deposit in terms of Rule 10 of Chapter IV of Abkari (Disposal in Auction) Rules. This constituted the cash security for due performance of the conditions of the licence. The amount was to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31. 3. 1993, before the amendment of rules and admittedly amended rules are not applicable and if no damages by way of kist ordered at the time of cancellation on the basis of amended Rule 13, no recovery steps can be issued with legal contracts and licensees for the Abkari year 1992-93. Other contracts and license under question in these original petitions were also entered before the amendment of the rules with effect from 1.4.1993. The amendment of Rules 13 was made on in December 1993. Therefore, contracts, executed after the amendment of rules may be bound by it if the rules are valid. But contracts covered in these years were executed prior to the amendment of the above rule. 13. In this case, it is evident that when the state initiated recovery proceedings it did not give credit of the amounts collected under the head of department management fee -as was required under pre-existing Rule 13. Its main contention before this court is that amounts collected as departmental management fee were not adjustable. In view of the decision in Lucka f.no. 1 , there cannot be any dispute that contracts entered into before amendment of Rule 13-as in this case-were not to be treated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al position was conceded by the counsel for the parties. In any case, we shall refer to few judgments containing this dicta, a little later. 15. Another equally important principle applies: in the absence of express statutory authorization, delegated legislation in the form of rules or regulations, cannot operate retrospectively. In Union of India v M.C. Ponnose 1970 SCR (1) 678 this rule was spelt out in the following terms: The courts will not, therefore, ascribe retrospectivity to new laws affecting rights unless by express words or necessary implication it appears that such was the intention of the legislature. The Parliament can delegate its legislative power within the recognised limits. Where any rule or regulation is made by any person or authority to whom such powers have been delegated by the legislature it may or may not be possible to make the same so as to give retrospective operation. It will depend on the language employed in the statutory provision which may in express terms or by necessary implication empower the authority concerned to make a rule or regulation with retrospective effect. But where no such language is to be found it has been held by the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f.no.1 , correctly reasoned that the amended Rule 13 was inapplicable to contracts previously awarded or entered into. The sequitur is that departmental management fee collected by the state, for the period the vend (or outlet) was in its direct management, could not be recovered again, and had to be adjusted. Apparently, the state had preferred appeals, by special leave from the common judgment in Lucka f.no.1 . Those appeals were ultimately dismissed on 19.2.2008. In Civil Appeal Nos. 4976-4987/2002 and connected cases as well as a special leave petition (SLP (C) 19586/2007) In these circumstances, and having regard to the principle that retrospectivity cannot be presumed, unless there is clear intention in the new rule or amendment, it is held that there is no infirmity with the judgment of the High Court. 21. The findings and conclusions previously recorded would have been dispositive of the issues arising in this appeal. However, this court is mindful of the fact that the respondent had succeeded before the High Court and was thus entitled to claim adjustment of the departmental management fees, for the period after its contract was terminated. The respondent was also en ..... X X X X Extracts X X X X X X X X Extracts X X X X
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